Tony Duncan Law

This Blog/Web site is made available by the lawyer or law firm publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this Blog/Web site you understand that there is no attorney-client relationship between you and the Blog/Web site publisher. The Blog/Web site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

Plaintiff/Appellant Nationwide appeals the trial court’s grant of Defendant/Appellee’s
motion to dismiss for failure to state a claim for which relief can be granted. Defendant’s
motion was based on the argument that Plaintiff’s claim was time-barred pursuant to the
Tennessee Governmental Tort Liability Act, and that Tennessee Code Annotated section
20-1-119 did not allow Plaintiff to timely add Defendant to the suit. Because we conclude
that the trial court incorrectly applied Tennessee’s comparative fault statute, we reverse.

NOTE: This opinion does a good job of analyzing and explaining Tenn. Code Ann. sec. 20-1-119 (our state's comparative fault joinder statute). I am a little surprised the trial court granted the dismissal as this issue was addressed a few years ago in Queen’s Tree Surgery v. Metropolitan Government of Nashville and Davidson County, No. M2003-00228-COA-R3-CV, 2003 WL 22768689 (Tenn. Ct. App. Nov. 24, 2003). For what it is worth, I had a similar issue come up a little while back in Scales v. H.G. Hill Realty Co., which is the subject of my Jan. 31, 2018 post: http://theduncanlawfirm.blogspot.com/2018/01/new-tennessee-court-of-appeals-opinion.html.

A motor vehicle accident on the roadway abutting a truck stop resulted in the death of the
plaintiff’s husband. The driver of the vehicle turning left into the truck stop was using
the entrance meant for semi-trailer trucks and had a limited view of oncoming traffic due
to a hill that crested a short distance ahead. The plaintiff filed a negligence claim against
the truck stop owners and operators, asserting they created a hazardous condition by
failing to place visible signage on their property directing passenger vehicles to the
appropriate entrance. The defendants moved to dismiss the complaint, contending they
owed no duty to the traveling public because the collision occurred on a municipal road,
not on their property. The trial court granted the motion to dismiss, and the plaintiff
appealed. We reverse the trial court’s judgment, holding that a balancing test is required
to determine whether the defendants owed a duty to the plaintiff’s husband and that
dismissing the complaint is premature at this stage of the proceedings.

NOTE: This is an excellent opinion that discusses the standard of review to be applied for motions to dismiss and when a duty of care arises. This is a must-read opinion for attorneys who are interested in these two matters.

We granted the Tenn. R. App. P. 9 application for interlocutory appeal in this case to
consider whether a healthcare provider can use Tenn. Code Ann. § 68-11-272, (“the peer
review statute”), to claim privilege and exclude evidence that an employee was
threatened with dismissal or retaliation if the employee refused to change their story or
alter documents in order to cover up possible negligent conduct. We find and hold that
the peer review privilege contained within Tenn. Code Ann. § 68-11-272 never was
intended to allow a healthcare provider to attempt without fear of adverse consequences
to force an employee to commit perjury. We, therefore, reverse the July 31, 2017 order
of the Circuit Court for Washington County ... excluding the testimony
of defendants’ employee pursuant to the peer review privilege contained in Tenn. Code
Ann. § 68-11-272 and remand this case for further proceedings consistent with this
Opinion.

NOTE: The defendant herein was attempting to use the peer review statute to suborn perjury; take a minute for that to sink in. Perjury! That is why the panel, in construing the peer review statute, wrote: "[I]n no known universe does suborning
perjury fit within the General Assembly’s stated purpose of Tenn. Code Ann. § 68-11-272...." Reynolds, No. E2017-02403-COA-R9-CV, slip op. at 7 (emphasis added). I am glad the panel did what it did and shut this sort of "argument" down, because what was being attempted was simply beyond the pale.

This appeal arises from an action for personal injuries incurred in a vehicle collision. The
alleged tortfeasor died subsequent to the injury-causing accident. The plaintiffs, unaware
of the death of the decedent, commenced this action and named him as a defendant. The
plaintiffs also sued their uninsured/underinsured motorist insurance carrier. Upon
learning of the death of the decedent, the plaintiffs moved for the trial court to appoint an
administrator ad litem. The trial court eventually dismissed the matter in its entirety with
prejudice upon finding, inter alia, that it did not possess subject matter jurisdiction to
appoint an administrator ad litem and that the action was barred by the statute of
limitations. We affirm.

NOTE: This opinion does a great job of outlining what must be done by a plaintiff to "revive" (although that term is not technically used now under current law, see generally Tenn. R. Civ. P. 25.01, https://www.tncourts.gov/rules/rules-civil-procedure/2501) a claim against a deceased tortfeaso so that claims asserted in a civil action do not become time-barred.

Sunday, December 16, 2018

The Tennessee Court of Appeals recently released its opinion in Bertucelli v. Haehner, No. E2017-02068-COA-R3-CV (Tenn. Ct. App. Nov. 28, 2018). The syllabus from the slip opinion reads as follows:

Appellants appeal the trial court’s order granting Appellees’ motion for summary
judgment “as to all remaining issues” asserted by Appellants in their complaint. In its
order granting summary judgment, the trial court failed to state the legal grounds on
which it granted summary judgment on the remaining claims as required by Tennessee
Rule of Civil Procedure 56.04. In the absence of such grounds, this Court cannot make a
meaningful review of the trial court’s decision. We, therefore, vacate the trial court’s
final order and remand the case for further proceedings. Vacated and remanded.

The parties dispute whether, under Tennessee Code Annotated section 16-15-710, the
applicable statute of limitations was tolled by service of process when no proof of service
was returned to the court as required under Tennessee Code Annotated section 16-15-
902(a). Under the holding in Fair v. Cochran, 418 S.W.3d 542 (Tenn. 2013), we
conclude, as did the trial court, that Appellee’s failure to make return to the court did not,
ipso facto, constitute a lack of service of process such that the statute of limitations
expired. Affirmed and remanded.

NOTE: In my opinion, I think this case hinges upon the fact that the appellant-defendant's attorney admitted in court that her client had been served with leading process. Hart, No. W2018-00254-COA-R3-CV, slip op. at 2. And, I think it mattered that Plaintiff's prior counsel's credible testimony evinced that he had made a proper return of proof of service to the clerk's office. Id.

This opinion also cites one of my cases, Fair v. Cochran, 418 S.W.3d 542 (Tenn. 2013), just like the one in my prior blog post. Always nice to be part of a solid opinion that is relied upon for years to come.

Thursday, December 13, 2018

The Tennessee Court of Appeals recently issued its opinion in Middleton v. City of Millington, No. W2018-00338-COA-R3-CV (Tenn. Ct. App. Dec. 11, 2018). The syllabus from the slip opinion reads as follows:

The trial court granted summary judgment to defendant city on the basis of the expiration
of the statute of limitations. Specifically, the trial court ruled that plaintiff’s complaint
was ineffective to toll the statute of limitations where service of process on the city clerk
did not comply with Rule 4.04(8) of the Tennessee Rules of Civil Procedure and process
was not reissued. Discerning no error, we affirm.

NOTE: This opinion cites one of my cases, Fair v. Cochran, 418 S.W.3d 542, 544 (Tenn. 2013). Middleton, W2018-00338-COA-R3-CV, slip op. at 3. Both this opinion and Fair are must-reads if you practice on the civil side in Tennessee state courts because they stress the point that while filing a civil action within the applicable statute of limitations is vitally important, the service of leading process is also vitally important to prevent claims in a civil action from becoming time-barred.

What can a plaintiff do when insufficiency of service of process is pleaded as an affirmative defense like what was done in this case? Take a look at Rule 4.07 of the Tennessee Rules of Civil Procedure, which can be viewed at this link: http://www.tncourts.gov/rules/rules-civil-procedure/407.

Rule 4.07 has a cost-shifting provision that helps ensure that a defendant is properly before a Tennessee state court (much like the similar federal provision). It has some teeth.

Wednesday, November 28, 2018

The Tennessee Court of Appeals just released its opinion in Parks v. Walker, No. E2017-01603-COA-R3-CV (Tenn. Ct. App. Nov. 28, 2018). The syllabus from the majority opinion reads as follows:

This is a health care liability action. Plaintiff gave written pre-suit notice of her claim to
potential defendants. See Tenn. Code Ann. § 29-26-121(c) (2018). She then filed her
complaint. Defendants filed motions to dismiss. After a hearing, the trial court held that
plaintiff failed to substantially comply with the requirements of the notice statute by
failing to provide a HIPAA-compliant medical authorization, pursuant to Tenn. Code
Ann. § 29-26-121(a)(2)(E). It entered an order granting defendants’ motions to dismiss.
Plaintiff appeals. We affirm.

NOTE: Respectfully, I think the majority opinion is in error. Again it confounds me that the courts of Tennessee—and many lawyers—have not picked up on the fact that a defendant (or potential defendant) in a health care liability action does not have to have a HIPAA-compliant authorization to share a patient's or plaintiff's protected health information ("PHI") with other defendants and their legal counsel because because doing that is part of a covered entity's "health care operations" as defined by 45 C.F.R. sections 164.501, -502(b), -.514(d).

As such, dismissal of a health care liability action because a defendant did not get a HIPAA-compliant authorization for a patient's PHI would be improper because Tenn. Code Ann. sec. 29-26-121's requirement that such an authorization be enclosed as part of a claimant's presuit notice appears to be preempted by HIPAA.

Friday, November 16, 2018

The Tennessee Court of Appeals just issued its opinion in Green v. St. George's Episcopal Church, No. M2017-00413-COA-R3-CV (Tenn. Ct. App. Nov. 16, 2018). The syllabus from the slip opinion reads as follows:

This appeal arises from a jury verdict in a personal injury action. The defendant alleged
the comparative fault of a nonparty who was potentially immune from liability under
Tennessee’s agritourism statute. See Tenn. Code Ann. §§ 43-39-101 to -103 (Supp.
2018). Before trial, the defendant asked the court to exclude all evidence and argument
before the jury regarding statutory immunity as irrelevant and prejudicial. The court
excluded argument and evidence of immunity but allowed the parties to present evidence
on whether the nonparty had complied with the statute. At the conclusion of the trial, the
court permitted the jury to apportion a percentage of fault to the nonparty without
considering the nonparty’s compliance with the agritourism statute. On appeal, the
plaintiff argues that the trial court erred in allowing the jury to allocate fault to the
nonparty because the agritourism statute provided immunity from fault as well as
liability. We conclude that nothing in the agritourism statute precludes the allocation of
fault to a nonparty agritourism professional in a negligence action. So we affirm.

NOTE: This opinion does a good job of explaining Tennessee's system of modified comparative fault and the allocation of fault under as affected by our agritourism statutes, which grant immunity under certain circumstances.